Confessions
Confessions
This domain tests admissions of guilt and the reliability safeguards around them. A confession is any statement, wholly or partly adverse to its maker, whether to a police officer, a private person or in writing. Confessions are an exception to hearsay, but they are excluded where their reliability is compromised.
Core rules
- Admissibility. The prosecution must prove that a confession was not obtained by oppression, or in consequence of anything said or done that was likely to render it unreliable. Oppression includes torture, inhuman or degrading treatment, and sustained or aggressive questioning.
- Voluntariness. The statement must be voluntary in the sense that it is not obtained by threat, promise or improper pressure. A breach of safeguards, such as cautioning or access to a solicitor, does not automatically exclude a confession.
- Voir dire. Where admissibility is disputed, the judge decides in the absence of the jury. The prosecution bears the burden of proving admissibility beyond reasonable doubt.
- Discretion. Even a technically admissible confession may be excluded for unfairness, for example where the defence cannot fairly test it.
- Corroboration and mixed statements. A confession may be enough to convict, but courts warn of the danger of false confessions. Mixed statements contain both adverse and exculpatory parts and are usually admitted as a whole.
Worked example
D is interviewed for 20 hours without rest and told that his family will be arrested unless he admits the offence. He confesses. The confession is likely excluded: the sustained questioning may amount to oppression, and the threat concerning his family is likely to render the admission unreliable. The drugs later found as a result may still be admissible if the search was lawful and their probative value is not outweighed by unfairness.
Traps
Do not say a confession is inadmissible merely because a caution was omitted. Do not confuse admissibility with weight. Do not assume the defence must prove oppression; the prosecution must disprove it once raised. Do not forget mixed statements.